AUSTIN, Texas _ An unusual divorce is playing out in a Texas courtroom: A man who was separated from his wife delivered a bombshell after many years apart and asked a judge to declare him the father of a young boy his spouse had birthed through in vitro fertilization.
After the couple separated, the boy's mother used an anonymous sperm donor to have the child in 2015. The woman's estranged husband filed a notice with the court the next year stating he wanted nothing to do with the boy. It was an amicable resolution.
But the man changed his mind in July, stating in a petition to the court that he wanted to be the dad and is legally entitled to the child under state law because he remains married to his mother.
"He blindsided me," said Cheri Bergeron, of Lakeway. "He gave me no indication whatsoever. This was a thing where we had complete agreement until we didn't."
Facing the weight of state laws that favor pairing children with a mother and a father, Bergeron stepped into a Travis County district courtroom last week to block her estranged husband, Clay Saunders, from becoming the father of 4-year-old Brayden Bergeron. State District Judge Scott Jenkins ruled in her favor Friday.
Saunders' lawyer, P. Lindley Bain, told Jenkins that her client had made a mistake when Brayden was younger by "not stepping up to the plate." He was ready to make amends, she said, and had begun forming a relationship with Brayden in recent months after a court granted Saunders visitation rights.
The boy, Bain noted, calls Saunders "dad" and would be best served by their relationship continuing.
But the lawyer representing Bergeron, Jimmy Evans, cited 80 examples of Saunders failing to do things for Brayden that a normal father would do, like taking him for a haircut or trimming his fingernails. Evans scoffed at recent moves Saunders made to endear himself to the boy _ and to the court _ such as setting up a bedroom in his home for Brayden and sending Bergeron money for the child.
This is the first known case in Texas in which a married man was fighting to be the father of a child born to his wife through assisted reproduction using a sperm donor.
Experts last week gave competing opinions on what the judge should do. Brayden's therapist testified that the boy would suffer emotional harm if Saunders got to take over as father. Tyler Pennington, an amicus lawyer appointed by the court to be a neutral fact finder, recommended that Saunders be declared Brayden's father.
Pennington declined to elaborate on his position Tuesday when reached by the American-Statesman.
Jenkins, the judge, sided with Bergeron at the end of the three-day trial last week and ordered Saunders to take a DNA test that is required by state law to disprove him as the presumed biological father. The test seems to be a formality since both sides agree that Bergeron was impregnated with sperm that is not Saunders'.
Bain, Saunders' attorney, did not return a message Tuesday. She likely will ask the court to grant Saunders joint custody of Brayden as a non-parent when the parties convene in March to finalize the divorce.
Brayden's birth came after the couple had trouble having other children. Their first child died in utero in 2012. They tried again the following year, getting pregnant with twins through in vitro fertilization using their shared embryos. A newborn boy died three weeks after birth; that boy's sister, Lauren, is now 6 and the biological daughter of Bergeron and Saunders.
Bergeron, who had been living separately from her husband before she got pregnant with the twins, filed for divorce later that year. The proceedings ambled through court; Bergeron said she wasn't rushing because being married saved her money in taxes she owed.
Not finalizing the divorce proved to be a mistake, she said, when Saunders moved to become Brayden's father.
"He took my kindness and twisted it," Bergeron said.
Though the case might be an oddity, Bergeron wants to change the law that she said gave her estranged husband "rights to my uterus." A supporter drafted a petition on her behalf under change.org. Bergeron is pushing state Sen. Dawn Buckingham to take up her request at the state legislature.
"I believe the laws need to be modernized to catch up to our science," Bergeron said.
